The approval should be a formality. The reason for giving it to
experts on crop pesticides and North Sea trawlers – who will not
debate the measure – is one of haste: it's the only way to seal the
draft law's final approval by the Council of Ministers this side of
2005. Its next audience, the European Parliament, is likely to be
more critical at a Second Reading in 2005.
The controversy over the Directive is sure to follow the
legislation into the new year. A recent OUT-LAW article, based on
criticisms by Dr John Collins, a partner with Marks & Clerk,
the UK's largest firm of patent and trade mark attorneys, against
the stance of the open source software movement, provoked a rebuke
from one of its forebears, Richard Stallman.
Stallman is the founder of the GNU Project, launched in 1984 to
develop a free operating system called GNU. Whenever you hear of
Linux, you are actually hearing a reference to a variant of the GNU
operating system which uses the Linux "kernel" – or the core of the
system that provides basic services for all other parts of the
operating system shell.
In the OUT-LAW article, Dr Collins argued that Linus Torvalds,
founder of the famous Linux variant, was wrong to suggest that the
draft Directive will broaden what can and cannot be patented. "This
is simply a false assumption," said Dr Collins. He continued:
"Torvalds and his supporters lack a fundamental understanding of
intellectual property rights as they seem to be unaware that
copyright can only protect software code, and not software
inventions."
"Allowing for patent protection on software
inventions is a requirement of the World Trade Organisation's TRIPS
agreement which states that patents must be available in all fields
of technology."
But Stallman, who also sits as President of the Free Software
Foundation, disputes this on several counts. In an e-mail to
OUT-LAW, he wrote:
"I have been campaigning against software
idea patents for 14 years, and I welcome the support of Linus
Torvalds. Both he and I are well aware that copyright covers the
details of expression of a program and does not monopolize ideas -
whereas every patent is an explicit monopoly on use of some idea.
This is precisely why we are campaigning against software patents
and not against software copyrights.
"Both of us are noted for developing
powerful, successful software packages (which, taken together, form
the basis of the GNU/Linux operating system), and both of us are
aware that such projects entail combining thousands of different
computational ideas. If a country allows computational ideas to be
patented, developing a large useful program means running a gantlet
of patent threats - which only the megacorporations think they can
do.
"Offering us the opportunity (at great
expense) to use patents to take shots at other software developers
would hardly assuage the damage that others would do when they
point their patents at us. The European Parliament understood that
the 'patent protection' software developers need is protection from
patents.
"Fortunately, Dr Collins is mistaken in
believing that the GATT agreement requires software patents.
Several other countries that adhere to the WTO reject software
patents, and the European Union would be wise to join them. In the
past few years, the European Patent Office has issued over 30,000
software patents, in blatant defiance of the treaty which set it
up. The Parliament's version of the directive will reaffirm that
these patents never had validity, and will keep European software
developers and users safe. Now the question is whether the Council
of Ministers will support developers and users generally, or the
megacorporations only."
We put this to Dr Collins. He responded:
"Richard Stallman's accusation that people
in the debate of either being confused or trying to confuse is
grossly unfair to those seeking to clarify the law in this field.
It must be remembered that the [Computer-Implemented Inventions]
Directive set out only to clarify and unify the law in the EU. Its
remit was never to change the law.
"The essential problem is one of definition:
what is and is not patentable. I doubt there can be any argument
that all fields of digital processing should be excluded from
patent protection e.g. digital TV, medical scanners and imaging and
telecomms. All of these technologies involve software. The EPO have
developed an approach, which not unreasonably says that inventions
involving software are patentable so long as there is 'technical
contribution'. Of course this is open for interpretation but I have
heard no alternative workable definition. The parliament's version
was certainly not a workable solution since all digital processing
was excluded from patentability.
"I have heard calls for 'pure software' to
be excluded. What is 'pure software'? I have also heard calls for
software on general purpose computers to be excluded. What is a
general purpose computer? For example, I am typing this on a
Blackberry hand held device. Is this a 'general purpose
computer'?
"What I, as a legal adviser, seek is clarity
to assist in advising clients. Clarity is good for my clients in
many respects, not least because the cost of legal advice is lower
when the law is clear. The Parliament's version will not be good
for my clients and EU industry in general because it will not bring
about clarity and will in fact change the law. Any changes in law,
particularly when as unclear as the Parliament's version, will
increase legal cost and uncertainty."
Dr Collins did not defend his point about TRIPS "requiring"
software patents. However, it is an argument that arises frequently
in this debate. TRIPS, or the Treaty on Trade Related Aspects of
Intellectual Property Rights, was signed in 1993 as a constituting
document of the World Trade Organisation (WTO). It sets minimal
rules for national intellectual property law in order to prevent
member nations from using intellectual property as a hidden trade
barrier against other nations. A particular provision of TRIPS has
often been construed by patent lawyers to imply that patent claims
must be allowed to extend to computer programs.
This provision, found in Article 27, states that "patents shall
be available for any inventions, whether products or processes, in
all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application." Whether
this requires software patents depends on your interpretation of
these words.
Richard Stallman actually objects to the term "intellectual
property rights," considering it harmful and misleading to put
patent and copyright protections under the same banner. "People who
use the term," he writes, "are generally either trying to confuse
you, or are already confused themselves. Since Dr Collins is a
trained specialist, I think he knows what our point really is, and
that he only feigns to misunderstand." (See Stallman's article
about the semantics.)
The Agriculture and Fisheries Commission is due to vote at 3pm
today. It should have voted earlier in the day, but according to an
article by The Register, there was a last minute delay caused by a
plea to Germany's Minister from the Mayor of Munich, asking that
the Directive be removed from the Commission's agenda altogether.
Mayor Christian Ude said the proposal merits further discussion
rather than a rubber-stamping.
